It’s hard to imagine being stripped by a court of the right to make decisions about finances, medical care and other matters. It’s even harder to imagine that happening without representation or advice from a lawyer.
Yet that’s exactly what can happen in Pennsylvania if a person is deemed unable to conduct his or her own affairs. A court then appoints a guardian who can make life decisions and manage finances for the person.
There is no right to have an attorney during this process. And that is wrong. People who face losing control of the right to manage their lives should have the advice of an attorney and have representation should they wish to fight against a claim that they are incompetent.
About 18,400 adults in the state, more than half over age 60, are under guardianship, according to Spotlight PA, an independent, nonpartisan newsroom of which the Pittsburgh Post-Gazette is a partner.
Problems with the guardianship process in Pennsylvania were clear, and the state Supreme Court took action by creating an Elder Law Task Force to make recommendations on guardianship and other reforms. The task force issued a report calling for reforms in 2014. While some reforms happened, a recommendation to require appointed counsel never was implemented.
The weird thing is that officially, the goal of providing legal counsel is marked as accomplished. It depends on the definition of accomplished. For the state’s Office of Elder Justice, charged with putting the recommendations into force, accomplished means the idea was considered but rejected. Noah Webster would not be pleased.
Several members of the task force rightly expressed dismay that a right to legal counsel remains undone. A few judges appoint counsel in guardianship cases because they think it’s the right thing to do — they deserve commendation. The law should require all judges to follow suit.
And guardians aren’t subject to sufficient oversight. An improvement was made in 2018 when new software was made available for guardians to submit annual reports. The software identifies possible problems in the guardian’s handling of financial affairs. That doesn’t prove wrongdoing. The trouble is some jurisdictions are overwhelmed because of alerts about possible problems, and they don’t have the manpower to follow up.
Another weakness in the reporting system is that guardians are not required to submit bank statements, receipts and other documentation to verify their reports.
First require appointed counsel. Then legislators have more work to do to protect residents of the commonwealth under guardianship.
Full Article & Source:
Guardianship gap: Give people a right to counsel for proceedings
